Beruflich Dokumente
Kultur Dokumente
REPORTABLE
VERSUS
WITH
JUDGMENT
Dr Dhananjaya Y Chandrachud, J.
1 Delay condoned.
2 Leave granted.
Digitally signed by
DEEPAK SINGH
Date: 2019.02.14
17:41:26 IST
aside an order of the MP State Consumer Disputes Redressal Commission 2 holding the
Reason:
1 NCDRC
2 SCDRC
2
respondents guilty of medical negligence in the treatment of the spouse of the appellant
which eventually led to her death on 15 November 2009. In consequence, the award of
compensation of Rs. 6,00,000 awarded, together with interest, has been reversed.
4 The spouse of the appellant, Madhu Manglik, was about 56 years of age, when
on 14 November, 2009, she was diagnosed with dengue fever. The report of the
The patient was admitted to Chirayu Health & Medicare hospital at Bhopal at about 7
am on 15 November 2009. She was immediately admitted to the Intensive Care Unit.
Though she was afebrile, she reported accompanying signs of dengue fever including
headache, body ache and a general sense of restlessness. The patient had a prior
medical history which included catheter ablation and paroxysmal supra ventricular
5 Upon admission at about 7.30 am, basic investigations were carried out. The
blood report, together with the accompanying clinical examination indicated the
following position:
“Hb 13.4
TLC 3000/Cumm,
Platelet count 97000/cumim,
PS for MP no malarial parasite seen
Blood urea 21 mg%
Serum bilirubin img%
SGPT 521 U/L,
SGOT 105Mg/dl
ELECTROLYTE Sodium 140 meq/L
Potasium 4.0 meq/L Ex R4
Urine test normal Ex R6
10.00 am – Pulse-88/min,
Bp. 130/88 mm Hg
Temp. A febrile c/o Pain in abdomen
3
6 By 6 pm, on the date of admission the patient was sinking, her blood pressure
was non-recordable, extremities were cold and the pulse was non-palpable. In the
meantime, the patient was placed on a regime of administering intravenous fluids. The
administration of 2500ml of fluids was planned over the course of 24 hours. Between 7
am and 6 pm, she was administered about 1200 ml of fluids. The patient developed
bradycardia and cardiac arrest. Faced with this situation, the treating doctors
administered about 1.5 litres of extra fluids. Fluids and colloids were administered for
7 Since the blood pressure of the patient did not improve, she was administered
ionotropes (dopamine & non adrenaline). At 6.45 pm, the patient suffered a cardiac
arrest. Her cardiac levels were monitored. At 6.55 pm she was examined by Dr C C
Chaubey.
8 Belatedly, at 7.15 pm, another blood sample was taken, which indicated the
following results:-
“Hb – 8.1/d/
TLC-7,400/Cumm
Platelet count 19000/cmm Ex R 10
Total protein- 3.9 gms%
A/G Ratio – 2
SGOT 169 IU/L”
9 At 8 pm, the patient had a cardiac arrest. She was declared dead at 8.50 pm.
4
India.
11 The Ethics Committee of the Medical Council of India came to the conclusion on
20 February 2015 that though the treating doctors had administered treatment to the
patient in accordance with the established medical guidelines, the treatment was not
timely. The Ethics Committee, prima facie, found that there was professional
misconduct on the part of both the Director of the Hospital Dr Ajay Goenka (respondent
Council. The appellate order of the Medical Council was communicated on 15 July
2015.
compensation in the amount of Rs. 48 lakhs on the ground that his spouse suffered an
untimely death due to the medical negligence of the treating doctors at the hospital.
14 By its judgment dated 27 April 2015, the SCDRC came to the conclusion that a
5
case of medical negligence was established. An amount of Rs. 6 lakhs was awarded to
the appellant by way of compensation, together with interest at the rate of 9 per cent
per annum.
16 Assailing the decision of the NCDRC, learned counsel appearing on behalf of the
(i) The patient was admitted to the hospital on 15 November 2009 with a reported
(ii) The hospital and the treating doctors failed to follow the established protocol in
(iii) The line of treatment was contrary to established guidelines, formulated by the
(iv) Except for the blood sample which was taken at about 7.30 am, no further effort
was made to determine the hematocrit levels (HCT) during the course of the day
and it was only when the patient suffered a cardiac arrest after 6 pm that blood
(v) The trajectory of the illness indicated that the platelet levels which stood at
(vi) Admittedly, fluids were administered to the patient as a part of the treatment
protocol;
monitoring of blood levels which would have indicated that there was a
(viii) Plasma leakage, hemorrhagic fever or dengue shock syndrome are likely
(ix) In the absence of regular monitoring, the treating doctors were guilty of medical
(x) The findings of the SCDRC were reversed by the NCDRC without any basis or
justification;
(xi) NCDRC has found fault with the patient’s family for the administration of aspirin in
(xii) The fact that she was administered aspirin was disclosed to the treating doctors
(xiii) NCDRC, in the first appeal, has displaced the findings of fact which have been
arrived at by the SCDRC without any basis in the evidence on record; and
(xiv) On the question of compensation, the appellant had also instituted a first appeal
before the NCDRC since the award of compensation was inadequate. On the
material which was placed on the record before the original authority, it is
necessary for this Court to allow the appeal and to suitably enhance the amount
of compensation.
submitted that:
(i) The patient had been suffering from fever from several days prior to her
November 2009;
(ii) The patient did not go into a situation of a dengue shock syndrome or
hemorrhagic fever during the course of the day when she was admitted to the
hospital;
in accordance with the guidelines which have been prescribed by the Directorate
(iv) The above guidelines, which have been prescribed by the Union of India under
the National Rural Health Mission, would indicate that it is only in a situation
involving dengue hemorrhagic fever or dengue shock syndrome that further steps
would be necessary;
(v) The fluids which were administered to the patient did not require a monitoring of
the blood more than twice a day and it was only in the evening that the HCT
(vi) The patient had prior cardiac complications for which she had been on an aspirin
regime prior to admission to the hospital. She was carefully monitored by a team
(vii) The treatment protocol which was followed was consistent with the guidelines
which have been prescribed both by WHO as well as by the National Vector
(viii) As held in the decision of this Court in Kusum Sharma v Batra Hospital and
Medical Research Centre3, the duty of care which is required of a doctor is one
(ix) The patient in the present case had prior complications and the treatment which
19 We will proceed on the basis of the facts as they stand admitted on the basis of
the record and in the counter affidavit which has been filed by the respondents.
20 Between 14 January 2009 when the blood report of the patient was obtained from
Glaze Pathology Lab and the morning of the following day on which she was admitted
to the hospital, the platelet count had recorded a precipitous decline from 1,79,000 to
97,000. This undoubtedly, as the hospital urges in the present case, is a consequence
of dengue. The patient had tested positive in the Dengue Antigen test. At 7.30 am, on
15 January 2009, her Hemoglobin was reported to be 13.4. The patient was thereafter
21 The condition of the patient was serious enough to require her admission to the
Intensive Care Unit of the hospital. The hospital has justified the administration of about
1200 ml of fluid between 7 am and 6 pm when she developed bradycardia and cardiac
arrest.
22 The real bone of contention in the present case is not the decision which was
taken by the doctors to place the patient on a regime of intravenous fluids which, for the
purposes of the present appeals, the Court ought to proceed as being on the basis of
an established protocol.
23 The essential aspect of the case, which bears out the charge of medical
negligence, is that between 7.30 am when the patient was admitted to hospital and 6
pm when she developed cardiac arrest, the course of treatment which has been
9
disclosed in the counter affidavit does not indicate any further monitoring of essential
samples.
24 Since her admission and through the day, the patient was administered
intravenous fluids. The fluids were enhanced at 6 pm by 1.5 litres after she developed
cardiac arrest. The record before the Court indicates that even thereafter, it was only at
7.15 pm that her blood levels were monitored. The lab report indicated a hemoglobin
level of 8.1 and platelet count at 19,000. By then, the patient had developed acute
signs of cardiac distress and she eventually died within a couple of hours thereafter.
both by the guidelines of the World Health Organisation on which the appellant has
26 The WHO guidelines indicate that Dengue is a ‘systemic and dynamic disease’
which usually consists of three phases i.e. febrile, critical and recovery. There had been
a precipitous decline in the patient’s platelet count the day she was admitted to the
……
Progressive leukopenia (3) followed by a rapid decrease in
platelet count usually precedes plasma leakage. At this point
patients without an increase in capillary permeability will improve,
while those with increased capillary permeability may become
worse as a result of lost plasma volume. The degree of plasma
leakage varies. Pleural effusion and ascites may be clinically
detectable depending on the degree of plasma leakage and the
volume of fluid therapy. Hence chest x-ray and abdominal
ultrasound can be useful tools for diagnoses. The degree of
increase above the baseline haematocrit often reflects the
severity of plasma leakage.”
10
Clause 2.3.2.2 of the WHO guidelines deals with patients who should be referred for in-
According to clause 7.1 of the guidelines of the Directorate of the National Vector Borne
The presence of the following signs and symptoms requires close monitoring and
“- respiratory distress
- oxygen desaturation
- severe abdominal pain
- excessive vomiting
- altered sensorium, confusion
- convulsions
- rapid and thready pulse
- narrowing of pulse pressure less than 20 mmHg
- urine output less than 0.5 ml/kg/h
- laboratory evidence of thrombocytopenia/coagulopathy,
rising Hct, metabolic
- acidosis, derangement of liver/kidney function tests.”
27 The patient had a prior medical history which included catheter ablation and
fell in the group of patients that require in-hospital management (Group B) under WHO
guidelines. The patient was evidently suffering from abdominal discomfort and hospital
manner, the respondents were unable to meet the standard of reasonable care
28 The issue is not whether the patient had already entered a situation involving
haemorrhagic fever or a dengue shock syndrome when she was admitted on the
12
morning of 15 November 2009. The real charge of medical negligence stems from the
failure of the hospital to regularly monitor the blood parameters of the patient during the
course of the day. Had this been done, there can be no manner of doubt that the
hospital would have been alive to a situation that there was a decline progressively in
29 This Court has consistently held in its decisions (the decision in Kusum Sharma
(supra) reiterates that principle) that the standard of care which is expected of a medical
professional is the treatment which is expected of one with a reasonable degree of skill
and knowledge. A medical practitioner would be liable only where the conduct falls
patient suffering from mental illness was held not guilty of medical negligence by the
Queens Bench for failure to administer muscle-relaxant drugs and using physical
“...I myself would prefer to put it this way, that he is not guilty of
negligence if he has acted in accordance with a practice accepted
as proper by a responsible body of medical men skilled in that
particular art. I do not think there is much difference in sense. It is
just a different way of expressing the same thought. Putting it the
other way round, a man is not negligent, if he is acting in
accordance with such a practice, merely because there is a body
of opinion who would take a contrary view…”
A careful reading of the Bolam case shows that the standard of “reasonableness” is
Bolam clarified that the standard imposes a duty on medical professionals to ensure
“…At the same time, that does not mean that a medical man can
obstinately and pig-headedly carry on with some old technique if
it has been proved to be contrary to what is really substantially
the whole of informed medical opinion.”
“11. The duties which a doctor owes to his patient are clear. A
person who holds himself out ready to give medical advice and
treatment impliedly undertakes that he is possessed of skill and
knowledge for the purpose. Such a person when consulted by a
patient owes him certain duties viz. a duty of care in deciding
whether to undertake the case, a duty of care in deciding what
32 In Jacob Mathew v State of Punjab6, a three judge Bench of this Court upheld the
of professional skill, as enunciated in Bolam (supra). The Court held that the standard
34 A three judge Bench of this Court in State of Punjab v Shiv Ram8 and in
35 A two judge Bench of this Court in Kusum Sharma (supra) laid down guidelines
to govern cases of medical negligence. Justice Dalveer Bhandari, speaking for the
Court, held:
8 (2005) 7 SCC 1
9 (2009) 6 SCC 1
16
“72. The ratio of Bolam case is that it is enough for the defendant
to show that the standard of care and the skill attained was that of
the ordinary competent medical practitioner exercising an
ordinary degree of professional skill. The fact that the
respondent charged with negligence acted in accordance
with the general and approved practice is enough to clear
him of the charge. Two things are pertinent to be noted. Firstly,
the standard of care, when assessing the practice as adopted, is
judged in the light of knowledge available at the time (of the
incident), and not at the date of trial. Secondly, when the charge
of negligence arises out of failure to use some particular
17
36 The “Bolam test” has been the subject of academic debate and evaluation in
India and other jurisdictions. Among scholars, the Bolam test has been criticized on
the ground that it fails to make the distinction between the ordinary skilled doctor and
the reasonably competent doctor.10 The former places emphasis on the standards
adopted by the profession, while the latter denotes that negligence is concerned with
departures from what ought to have been done in the circumstances and may be
determine what the reasonable doctor would have done and not the profession.
37 Since the formulation of the Bolam test, English Courts have formulated a
38 In Hucks v Cole,12 the Court of Appeal found the defendant guilty of medical
10 Michael Jones, Medical negligence, Sweet and Maxwell, Fifth Edition (2017)
11 1985] 1 All ER 635
12 (1968) 118 New LJ 469
18
39 In Bolitho v City and Hackney Health Authority,13 the House of Lords held that
the course adopted by the medical practitioner must stand a test to reason:
Wilkinson held that it is only in a ‘rare case’ when professional opinion is not capable of
‘withstanding logical analysis’, that the judge may hold that it is not reasonable or
responsible:
judge Bench of this Court highlighted the shortcomings of the Bolam test:
“19. Even though Bolam test was accepted by this Court as providing
the standard norms in cases of medical negligence, in the country of
its origin, it is questioned on various grounds. It has been found that
the inherent danger in Bolam test is that if the courts defer too readily
to expert evidence medical standards would obviously decline.
Michael Jones in his treatise on Medical Negligence (Sweet and
Maxwell), 4th Edn., 2008 criticised the Bolam test as it opts for the
lowest common denominator. The learned author noted that opinion
was gaining ground in England that Bolam test should be restricted to
those cases where an adverse result follows a course of treatment
which has been intentional and has been shown to benefit other
patients previously. This should not be extended to certain types of
medical accidents merely on the basis of how common they are. It is
felt “to do this would set us on the slippery slope of excusing
carelessness when it happens often enough” (see Michael Jones on
Medical Negligence, para 3-039 at p. 246).
24 With the coming into effect of the Human Rights Act, 1998 from 2-
10-2000 in England, the State's obligations under the European
Convention on Human Rights (ECHR) are justiciable in the domestic
courts of England. Article 2 of the Human Rights Act, 1998 reads as
under:
“Everyone's right to life shall be protected by law. No one shall be
deprived of his life intentionally save in the execution of a sentence of
a court following his conviction of a crime for which this penalty is
provided by law.”
25. Even though Bolam test “has not been uprooted” it has come
under some criticism as has been noted in Jackson & Powell on
41 Our law must take into account advances in medical science and ensure that a
case must evolve in consonance with its subsequent interpretation by English and
Indian Courts. Significantly, the standard adopted by the three-judge bench of this Court
in Jacob Matthew includes the requirement that the course adopted by the medical
professional be consistent with “general and approved practice” and we are bound by
this decision.
42 In adopting a standard of care, Indian courts must be conscious of the fact that a
large number of hospitals and medical units in our country, especially in rural areas, do
not have access to latest technology and medical equipment. A two judge bench of this
treatment, the medical professional must ensure that it is not unreasonable. The
threshold to prove unreasonableness is set with due regard to the risks associated with
15 (2009) 3 SCC 1
21
medical treatment and the conditions under which medical professionals function. This
negligence, often to the detriment of the patient. Hence, in a specific case where
circumstances of that case, a professional cannot escape liability for medical evidence
44 In the present case, the record which stares in the face of the adjudicating
authority establishes that between 7.30 am and 7 pm, the critical parameters of the
patient were not evaluated. The simple expedient of monitoring blood parameters was
not undergone. This was in contravention of WHO guidelines as well as the guidelines
was the finding of the Medical Council of India that while treatment was administered to
the patient according to these guidelines, the patient did not receive timely treatment. It
future. In failing to provide medical treatment in accordance with medical guidelines, the
respondents failed to satisfy the standard of reasonable care as laid down in the Bolam
case and adopted by Indian Courts. To say that the patient or her family would have
the evidence on the record. While the jurisdiction of an adjudicatory authority in a first
appeal is co-extensive with that of the original authority, the NCDRC has displaced the
findings of fact which have been arrived at by the SCDRC without any cogent
reasoning.
22
46 The appellate authority has placed a considerable degree of reliance on the fact
that the patient was on aspirin. This circumstance was drawn to the attention of the
treating doctors at the time of admission. The NCDRC has merely observed that once
she was admitted to the hospital, the patient was given medicines. This, in our view, is
an insufficient basis to displace the findings of fact and conclusions recorded by the
SCDRC.
47 For the above reasons, we are of the view that the judgment of the NCDRC is
negligence against the Director of the hospital. The Director of the hospital was not the
treating doctor or the referring doctor. Hence, while the finding of medical negligence
against the hospital would stand confirmed, the second respondent would not be
personally liable.
49 That leads the Court to the question of damages. Finding the hospital and its
Director guilty of medical negligence, the SCDRC directed compensation in the amount
50 While quantifying the compensation, the SCDRC was in error in holding that
since the son and daughter of the appellant are “highly educated and working” and had
51 The complainant has lost his spouse, who was 56 years of age. Though she was
not employed, it is now well settled by a catena of decisions of this Court that the
23
economic equivalent.
52 In Lata Wadhwa v State of Bihar,16 a three judge Bench of this Court computed
aftermath of a fire at the factory premises. The Court took into consideration the
multifarious services rendered to the home by a home-maker and held the estimate
arrived at Rs 12,000 per annum to be grossly low. It was enhanced to Rs 36,000 per
is not employed, the Court must bear in mind that the contribution is significant and
which has been laid down by the Constitution Bench in Lata Wadhwa and in National
55 In our view, the interests of justice would be met, if the amount of compensation
16 (2001) 8 SCC 197
17 (2009) 3 SCC 663
18 (2017) 13 SCALE 12
24
56 The compensation, as awarded, shall carry interest at the rate of 9 per cent per
annum from the date of the institution of the complaint before the SCDRC until payment
57 The appeals are allowed in these terms. There shall be no order as to costs.
…...............…...…………......………………........J.
[DR. DHANANJAYA Y CHANDRACHUD]
…...…...........................……………….…........J.
[HEMANT GUPTA]
New Delhi;
January 9, 2019.
25
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
VERSUS
WITH
SLP(C) Diary No. 44846 of 2018
(IA No.174108/2018-CONDONATION OF DELAY IN FILING and IA
No.174109/2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE HEMANT GUPTA
For Appellant(s)
Mr. Brijender Chahar, Sr. Adv.
Mr. Birendra Kumar Mishra, AOR
Mr. Shashi Bhushan, Adv.
Ms. Poonam Atey, Adv.
For Respondent(s)
Mr. Ankur Mittal, AOR
Mr. U.C. Mittal, Adv.
Ms. Nidhi Mittal, Adv.
Leave granted.
judgment.